| Managault v Rensselaer Polytechnic Inst. |
| 2009 NY Slip Op 03989 [62 AD3d 1196] |
| May 21, 2009 |
| Appellate Division, Third Department |
| Denise P. Managault, Respondent, v Rensselaer PolytechnicInstitute, Appellant. |
—[*1] Poklemba & Hobbs, L.L.C., Malta (Gary C. Hobbs of counsel), for respondent.
Mercure, J.P. Appeal from an order of the Supreme Court (Ferradino, J.), entered August 13,2008 in Saratoga County, which denied defendant's motion for summary judgment dismissingthe complaint.
On the evening of February 4, 2004, plaintiff, a Capital District Transportation Authority busdriver, parked her bus on defendant's campus in order to use a restroom that was located in afield house. As plaintiff approached the field house, her feet slid on what she claims was blackice, causing her to fall and injure her right knee and hand. Plaintiff thereafter commenced thisaction, alleging that defendant negligently failed to clear the ice from its walkway. Followingjoinder of issue, defendant moved for summary judgment dismissing the complaint. SupremeCourt denied the motion, concluding that triable issues of fact exist regarding defendant's noticeof the allegedly dangerous condition. Defendant appeals, and we now affirm.
In order to prevail on its motion for summary judgment, defendant was required to establishthat it "maintained the premises in a reasonably safe condition and neither created nor had actualor constructive notice of the allegedly dangerous condition" (Candelario v Watervliet Hous. Auth., 46 AD3d 1073, 1074 [2007];see Cantwell v Rondout Sav. Bank,55 AD3d 1031, 1031-1032 [2008]; Amidon v Yankee Trails, Inc., 17 AD3d 835, 836 [2005]). Ademonstration [*2]of " '[c]onstructive notice requires a showingthat the condition was visible and apparent and existed for a sufficient period of time prior to theaccident to permit [the] defendant[ ] to discover it and take corrective action' " (Cantwell vRondout Savings Bank, 55 AD3d at 1032, quoting Boyko v Limowski, 223 AD2d962, 964 [1996]; see Martin v RPAssoc., 37 AD3d 1017, 1017 [2007]). Particularly relevant here, "[w]hile plaintiffs. . . bear the burden at trial of establishing that defendant created or had notice ofthe condition, in the current procedural context—i.e., a motion for summary judgment bydefendant—the 'initial burden of establishing a prima facie entitlement to judgment' fallsupon [the] defendant" (Rosati v Kohl'sDept. Stores, 1 AD3d 674, 674 [2003], quoting Altieri v Golub Corp., 292AD2d 734, 734 [2002]).
In support of its motion for summary judgment, defendant submitted a copy of its snow andice response plan, as well as the testimony and supporting affidavit of the operations supervisorat the field house and the testimony of its site services department supervisor. Both employeesdescribed defendant's customary snow removal practices and indicated that no complaintsregarding icy conditions were reported on the day in question. Defendant also conceded that "theweather reports seem to indicate that there was a snowfall which commenced on February 3 andcontinued into the early morning hours of February 4, 2004," and proffered a work order costreport demonstrating the total number of hours worked by its employees in connection with thissnowfall. We note, however, that although defendant also presented plaintiff's testimony thatthere was a snow squall during the day on February 4, 2004, and that a dusting of snow coveredthe sidewalk at the time of the accident, the testimony regarding defendant's customary practiceand the work order cost report provide no detail regarding the conditions surrounding defendant'sfield house that night, when the accident occurred. Indeed, the operations supervisor stated onlythat the walkway would have been inspected at 6:00 p.m. and that if a dangerous or slipperycondition was apparent, it would have been remedied by the application of calcium chloride;neither of defendant's employees was able to provide evidence regarding whether the customaryprotocol was actually followed on the night in question.
Under these circumstances, we conclude that defendant failed to meet its initial burden ofdemonstrating as a matter of law that it did not have actual or constructive notice that an icycondition was present outside the field house (see Amidon v Yankee Trails, Inc., 17AD3d at 836-837; see also Altieri v Golub Corp., 292 AD2d at 735; cf. Cantwell vRondout Sav. Bank, 55 AD3d at 1032; Candelario v Watervliet Hous. Auth., 46AD3d at 1074). In any event, even assuming that defendant had met its initial burden, plaintiffpresented adequate evidence to raise a triable issue of fact. While plaintiff admittedly observedno ice prior to her fall, she was able to see that her feet had slipped on black ice as she was onthe ground waiting for help. She further observed defendant's employees spreading salt or sandon the accident site as an ambulance crew was removing her from the scene. Moreover,plaintiff's uncontroverted meteorological evidence—an expert affidavit and supportingclimatological data—indicated that snow fell on the night of February 3 and morning ofFebruary 4, 2004, but that no further precipitation occurred after 9:20 a.m. and, thus, icyconditions would have been present for at least six to eight hours prior to the fall (seeAmidon v Yankee Trails, 17 AD3d at 837).
Contrary to defendant's arguments, Supreme Court properly considered plaintiff's affidavitinasmuch as it did not contradict her prior deposition testimony (see DiGrazia v Lemmon, 28 AD3d926, 927-928 [2006], lv denied 7 NY3d 706 [2006]), and her description of theemployees' remedial actions is relevant to the condition and visibility of the ice at the time of thefall (see Mazurek v Home Depot U.S.A., 303 AD2d 960, 961 [2003]). Similarly,plaintiff's statements to the ambulance crew and hospital personnel that she had fallen on icecovering [*3]defendant's walkway were properly considered asprior consistent statements in response to defendant's assertion that plaintiff recently fabricatedher claim that she observed ice at the time of her fall (see Mooney v Osowiecky, 235AD2d 603, 604 [1997]; see also People v McDaniel, 81 NY2d 10, 18 [1993]; cf. Cuevas v Alexander's, Inc., 23AD3d 428, 429 [2005]). In short, viewing the evidence in the light most favorable toplaintiff, we conclude that the foregoing satisfied her burden of establishing material issues offact regarding the existence of a dangerous condition and defendant's constructive notice thereof(see Candelario v Watervliet Hous. Auth., 46 AD3d at 1074-1075; Boyko vLimowski, 223 AD2d at 963-964).
Spain, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, withcosts.